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TWO OUTTA THREE AIN’T BAD

The U.S. Sentencing Commission issued a report yesterday on the results of the 2-level reduction in drug base offense levels it adopted in 2014’s Amendment 782 (made retroactive by Amendment 788). Of the 43,500 inmates who applied to the courts for a sentence reduction under the amended Guideline, two-thirds were given sentence reductions averaging 17.2%.

The 2014 Drug Guidelines Amendment Retroactivity Data Report provides numbers from which much useful information can be gleaned:

• South Beach is nicer than Appalachia: Only 14% of the sentence reduction motions filed in the Southern District of Florida were denied, but 55% of those filed in the Eastern District of Kentucky were denied.

• This isn’t just about crack: The popular perception is that drug guideline reductions primarily benefit inmates with crack sentences. But 31.5% of the reductions went to meth offenders and 28.5% to cocaine powder defendant. Crack was a distant third at 19.9%, pot at 8.7%, heroin at 7% and oxycontin at 2.5%. No other drug was as much as 1%.

• Don’t trust the BOP to help: A motion under 18 U.S.C. 3582 for sentence reduction may be made by the defendant, by the court itself, or by the director of the BOP. In the last round, defendants themselves filed 83% of the motions, and the courts filed 17%. Out of the 43,500 filings, the BOP Director filed a total of zero. Not a one.

• A conversation about race: Of the people getting sentence reductions, 23% were white and 34% were black. The big winners were Hispanics, who represented 41% of people getting sentence cuts.

• Pay me now or pay me later: If you were lucky enough to get sentenced below your Guidelines range, you were less likely to be lucky on a sentence reduction. Of sentence reductions granted, 64% were for people who had gotten an in-range Guidelines sentence to begin with. Of sentence reductions denied, 49% were people who had gotten an in-range Guidelines sentence to begin with. For people who started out lucky with a below-range sentence, the odds were much poorer, 35% of the granted app pile, 50% of the rejects.

• You can get farther with a smile and a gun: People with a firearms enhancement to their drug sentence or a consecutive firearms sentence did neither better nor worse than anyone else in getting sentence reduction.

• Did we undersell just a little? When the Sentencing Commission announced the 2014 2-level reduction, it said that people benefitting from it would get sentence cuts averaging 11 months. Perhaps that was because it sounded better than anything with the word ‘year’ in it. But whatever, the Commission lowballed it badly. The average sentence before the reduction was 143 months, but only 118 months afterwards. In other words, the average sentence cut (17.2%) was 25 months, more than double the Commission estimate.

• Where not to be: After the 2014 2-level reduction, the best Circuit in which to be a drug defendant is the 6th (average sentence 103 months), with the 1st and 9th right behind. The worst place for drug trafficking is the 4th (average sentence 130 months), with the 7th and 11th nearly as severe.

• Failure is often an option: Amazingly enough, 64% of denied sentence reduction motions are because the defendant is not eligible to begin with, something that should be obvious to every applicant before putting a stamp on the application envelope. Only 21.5% of sentence reduction motions were denied because – while the inmate was eligible – the court decided the defendant should, in the words of Judge Smails of Caddyshack, “you’ll get nothing and like it!”

U.S. Sentencing Commission, 2014 Drug Guidelines Amendment Retroactivity Data Report (Oct. 25, 2016)